State v. Strawn

APPEARANCES AT HEARING CAROL ISKI FIRST ASSISTANT DISTRICT
ATTY COUNSEL FOR THE STATE

JAY K.
RAMEY COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL CAROL ISKI FIRST ASSISTANT DISTRICT
ATTY COUNSEL FOR APPELLANT

JAY K.
RAMEY SOUTH DENVER AVENUE TULSA, COUNSEL FOR APPELLEE

OPINION

HUDSON, JUDGE

¶1
On February 25, 2016, Appellee Kelly Strawn, was charged with
Count 1: Unlawful Possession of Controlled Drug With Intent
to Distribute, in violation of 63 O.S.Supp.2012, § 2-401
(B)(2); and Count 2: Driving with a Cancelled, Suspended or
Revoked License, in violation of 47 O.S.2011, § 6-303
(B), in the District Court of Okmulgee County, Case No.
CF-2016-75. Strawn was bound over at preliminary hearing on
the felony charge. Strawn thereafter filed a motion to
suppress all narcotics evidence arising from the traffic stop
of his vehicle. District court arraignment was held August 5,
2016. Strawn then filed supplemental authority with the
district court in support of his motion to suppress. On
October 7, 2016, a hearing was held on Strawn's motion to
suppress. At the conclusion of this hearing, the Honorable
Kenneth E. Adair, District Judge, granted the motion to
suppress and, upon the State's oral notice of its intent
to appeal, stayed further proceedings in the case.

¶2
Appellant, the State of Oklahoma, now appeals. We exercise
jurisdiction pursuant to 22 O.S.2011, § 1053 (5). For
the reasons discussed below, we reverse the district
court's ruling and remand for further proceedings.

BACKGROUND

¶3
Both the district court and the parties relied largely upon
the transcript of the preliminary hearing testimony in
litigating the motion to suppress below. What follows is a
summary of testimony from Oklahoma Highway Patrol (OHP)
Trooper Daren Koch, the sole witness presented at that
hearing. Trooper Koch, a seventeen (17) year OHP veteran,
described for the court his training and education in
relation to narcotics interdiction and certified drug K-9
handling. Trooper Koch also discussed his drug dog and the
certifications they hold as a team for drug detection.
Trooper Koch then turned to the events in the present case.

¶4
On February 16, 2016, Trooper Koch initiated a stop of a
truck driven by the defendant, Kelly Strawn, on Interstate 40
near Mile Marker 242 in Okmulgee County. Strawn was stopped
for speeding, specifically, driving 73 miles per hour in a 70
mile-per-hour zone. Trooper Koch made contact with Strawn at
the truck's driver-side window, informed him of the
violation and asked for a driver's license. Trooper Koch
then instructed Strawn to come back to the patrol unit so
Trooper Koch could write him a warning. Trooper Koch noticed
that Strawn's hand was shaking and that he had two large
dogs inside his truck. Strawn complied. Once both men were
seated in the front of the patrol unit, Trooper Koch started
running Strawn's license and vehicle registration and
began writing out the warning.

¶5
During his brief conversation with Strawn while sitting in
the patrol unit, Strawn said he was from Northern California
and was driving to Memphis to see a girl. Trooper Koch, based
upon his training and experience as a narcotics interdiction
officer, recognized Northern California as "a
hotspot" for the origin of narcotics, particularly
high-grade marijuana. When Trooper Koch inquired about
Strawn's destination, Strawn paused before saying he was
going to Memphis to see a girl. Trooper Koch "thought
possibly this pause that he had in his speech was a sign of
deception."

¶6
Strawn also repeatedly engaged in what Trooper Koch described
as a "fake yawning[.]" Trooper Koch estimated that
Strawn "fake yawn[ed]" at least six or seven times
during the course of his contact with Strawn in the front of
the patrol unit. Based on his training, Trooper Koch
testified that he recognized Strawn's "fake
yawning" as an indicator of nervousness. Trooper Koch is
trained to pay attention to body language and, based upon his
training and experience, he determined the fake yawns were
"nervousness that was leaking from [Strawn's]
body."

¶7
When Trooper Koch ran Strawn's driver's license, he
discovered it was suspended in California and was not valid.
Continuing the conversation, Trooper Koch asked Strawn what
he did for a living. Strawn paused, then responded that he
cut wood. Trooper Koch believed this was possibly another
deceptive answer. In addition, Trooper Koch observed other
signs of nervousness by Strawn. For example, Strawn's
carotid artery was visible in his neck and Trooper Koch
observed that it was "beating heavily, rapidly."
Trooper Koch noticed too that Strawn, in addition to the
yawning, was "making weird movements with his
mouth." Trooper Koch testified that he also could see
Strawn's heart beating through both his chest and shirt.

¶8
At this point, Trooper Koch thought Strawn "maybe... was
tweaking. It looked like he was on meth." Trooper Koch
recognized Strawn as being "extremely nervous."
Strawn's behavior was well outside the norm of what he
had observed in similar situations where he had written
warnings to motorists whose only offense was speeding. At
this point, Trooper Koch believed that he had reasonable
suspicion that criminal activity was afoot. Trooper Koch
asked Strawn about his license being suspended. ...

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